HAROLD KWAME TEMAKLO & MAUREEN DERBAN vs. FAUSTINA WOOD [2007]DLSC2441

Date	2007-05-23
Suit No.	CIVIL APPEAL NO. J4/22/206
Citation No.	[2007]DLSC2441

AKUFFO (MS) J.S.C.C. (PRESISING)

BROBBEY J.S.C.

DR. TWUM J.S.C.

ANSAH J.S.C.

ANINAKWA J.S.C.

MR. ODARTEY LAMPTEY FOR APPELLANT.

MR. SETH OWUSU FOR RESPONDENT.

[2007]DLSC2441
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													<main id="main" class="content" style="min-height: 60rem" >HAROLD KWAME TEMAKLO &amp; MAUREEN DERBAN<o:p></o:p>vs.<o:p></o:p>FAUSTINA WOOD<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/22/206<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 23RD MAY, 2007.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MR. ODARTEY LAMPTEY FOR APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MR.
SETH OWUSU FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AKUFFO
(MS) J.S.C.C. (PRESISING), BROBBEY J.S.C., DR. TWUM &nbsp;J.S.C., ANSAH J.S.C., ANINAKWA &nbsp;J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>SOPHIA A. B. AKUFFO (MS), J.S.C:.<o:p></o:p>By
a Writ of Summons issued on 1st April 1994, the Respondents (hereinafter
referred to as ‘the Plaintiffs’) sued the original Appellant (hereinafter
referred to variously as ‘the Defendant’ or ‘Madam Wood’, claiming the
following reliefs:-<o:p></o:p>1. A declaration that, on the death
intestate of Sylvia Adoley Garshong her self acquired property, House Number
649/10, Awudome Close, also known as number 1070, Kaneshie, became the property
of her three children pursuant to Section 4(a) of&nbsp; the Intestate Succession Law, 1984 (PNDCL
111).<o:p></o:p>2. An order of the Court compelling
the original Defendant, the co-administratrix of Sylvia Garshong’s estate to
join the other administratrix in executing a vesting assent, vesting the said
property in the children of the deceased.<o:p></o:p>3. An order of perpetual injunction
restraining the Defendant from attempting to exercise any rights of ownership
or possession over the property.<o:p></o:p>The
basic facts giving rise to this dispute are that Madam Wood was the mother of
the late Sylvia Garshong (hereinafter referred to as ‘Sylvia’) who died
intestate on 22nd May, 1987, survived by three children namely the Plaintiffs
and their younger sister, Sheila Derban. Upon Sylvia’s death, Madam Wood and
the 2nd Plaintiff obtained letters of administration to administer Sylvia’s
estate which, according to their declaration of the immoveable property of
Sylvia, consisted, solely, of the abovementioned property; it was also her
fixed place of abode at the time of her death. After the grant of the Letters
of Administration on 11th November, 1987, Madam Wood, on 31st January 1989,
deposed to an ‘Affidavit as to Change of Names on Housing Records’ wherein she
declared, inter, alia that she was the one who financed the purchase of the
property and that she has made extensions to the house. She further deposed, in
paragraph 5 of the affidavit that:-<o:p></o:p>“… I have taken Letters of
administration in respect of the said house and therefore I want the name
Sylvia Adoley Garshong [to] be changed and substituted my name Faustina Wood in
the record of the Housing Corporation.’<o:p></o:p>The
Ghana Housing Corporation, the lessors of the property, to whom the affidavit
was sent, eventually acted upon the request contained in the affidavit. It is
worthy of note that at all material times the administrators of the estate of
Sylvia Garshong never vested the property in any person, nor did the Defendant
act with the knowledge or consent of her co-administratrix. This is the
root-cause of this dispute.<o:p></o:p>In
the Plaintiffs’ Statement of Claim, they asserted that since Sylvia was not
survived by a spouse, the property devolved wholly to her three children,
pursuant to the provisions of section 4(a) of PNDCL 111. Hence, the said
children having become of full age and capacity, the Defendant must join the
2nd Plaintiff to execute a vesting assent in their favour.<o:p></o:p>By
her Statement of Defence, the Defendant denied that the property was Sylvia’s
self acquired property. Rather, she asserted that it was she, the Defendant,
who caused the property to be purchased in Sylvia's name and, moreover, she
financed the payments for the property from her own resources. According to
her, at the time the property was purchased, Sylvia was financially dependent
on her and in no position to purchase any property. Furthermore, according to
the Defendant, she had made extensions to the house and, at all material times
she had been in occupation of the same and had, as a mother permitted Sylvia to
occupy part of the house, just as she had, subject to good behaviour, permitted
1st Respondent to do. She, therefore, admitted that she had refused to vest the
property in her grandchildren, because, according to her, they were not
entitled to the same. Consequently, the Defendant counterclaimed for a
declaration of title to the property and an order of perpetual injunction
restraining the Plaintiffs from interfering with the same.<o:p></o:p>In
a judgement entered on 25th February 2000, the High Court upheld the
Defendant’s counterclaim and declared her to be vested with both the legal and
beneficial ownership of the property. The learned High Court judge also granted
an order of perpetual injunction against the Plaintiffs. Being dissatisfied,
the Plaintiffs, appealed to the Court of Appeal, which, on 10th June 2005,
granted the appeal and set aside the High Court’s decision. The Court of
Appeal, therefore, granted the Plaintiffs’ first and third claims but declined
their second claim, since the same related to the Defendant’s capacity as
co-administratrix of the estate of Sylvia Garshong and Madam Wood had died
shortly before the delivery of the judgement. <o:p></o:p>The
sole ground for the instant appeal is that the judgment of the Court of Appeal
is against the weight of the evidence adduced at the trial before the High
Court. It is, therefore, necessary for us to review the record to determine
whether indeed, the setting aside of the High Court’s decision is unjustified,
taking into account the totality evidence. Furthermore, we need to ascertain
whether, although an appeal is by way of a rehearing, the learned justices of
the Court of Appeal erred in substituting their evaluation of the evidence with
that of the High Court judge. <o:p></o:p>In
his Statement of Case for the Appellant herein, counsel conte</main>